[Islam-Online- Islamic]

The Development of Islamic Jurisprudence
Unlike Judaism and Christianity, Islam developed from the outset in the context of political power. Yet Muhammad left no detailed political theory or institutions empowered to develop one. Thus, classical Islamic theory de-veloped gradually and in dialogue with actual political developments.
The classical institution of Islamic leadership is the caliphate. From the death of the Prophet in 632 until 1924, there was, at least theoretically, a khalifah (lit. political successor). Muhammad's prophetic mantle was not inherited by his successors, and he did not leave behind a specific political system or designate a successor (according to Sunni belief). The Prophet was considered both a just arbiter and the source of divine revelation. Yet the two roles were not fused; the Qur'an even commanded the Prophet to make decisions on practical issues only in consultation (shura) with members of the community. In addition, the Prophet elicited periodic oaths of allegiance to his leadership (bay'ah) from the Muslims. Beyond establishing these precedents, the Prophet apparently left it to the community to devise its own form of governance.
In general, the Prophet's successors were expected to be personally pious and to behave according to the guidance left by the Prophet, but there were no formal criteria for determining the community's leadership or judging its legitimacy. The first successor, Abu Bakr, was chosen by the consensus of the Muslim elders in Madinah. He appears to have suggested his successor, 'Umar, to a council of community leaders who approved the choice. The next two successors ('Uthman and 'Ali) were also reported to have been chosen by such a council, the choices being presumably ratified by the community's oath of allegiance.
Yet it is unclear even what titles these leaders were accorded. Abuµ Bakr apparently used "successor to the Messenger of God" (khalifat [caliph] rasul Allah), while 'Umar seems to have preferred "leader of the faithful" (amir al mu'minin). However, as Watt points out, there is no evidence of a clearly defined significance for either designation.3 The Qur'an (4:62) simply commands: "Obey God and the Messenger and those among you in authority." We have no record that the early Muslim community believed it was doing anything more or less than that. The caliphate only came to be institutionalized gradually and on an ad hoc basis, as Muslim sovereignty began to spread and the office of caliphate became a coveted prize. In 661 c.e., following violent competition, the Umayyads, descendants of a leading Makkan family, assumed control of the caliphate and established their headquarters in Damascus. Here, a distinction between executive and legislative-judicial religious authority became apparent: Damascus became the empire's political capital while Makkah remained its religious center. The Umayyads ruled until they were overthrown by the Abbasids in 750. But still there was no theory upon which the institution was based.
However, during this time the field of Islamic law was developing, and a great deal of theorizing was taking place in that sphere, theorizing that would become the basis of Islamic political institutions. In the early days of the Muslim community, there were no official organs of either law or the interpretation of scripture on which law was supposed to be based. During the lifetime of the Prophet and his first four immediate successors (his closest Companions who are regarded by Sunnis as having been of exemplary character and judgment and are therefore called al rashidun or the "rightly-guided" caliphs), the model of governance was basically that of a revered tribal elder whose behavior became normative. As noted, Muhammad's prophetic role was explicitly distinguished from his practical leadership role. He is even reported to have told his community that they are the best judges in practical matters, except where the Qur'an directs otherwise. In the Constitution of Madinah, believed to have been dictated by him when he established the community at Madinah, he defined his political role as that of arbiter of disputes. After designating the rights and responsibilities of community members toward one another, he said: "Wherever there is anything about which you differ, it is to be referred to God and to Muhammad for a decision." Elsewhere, "Whenever among the people of this document there occurs any disturbance or quarrel from which disaster is to be feared, it is to be referred to God and to Muhammad, the Messenger of God."4 Clearly, it was assumed that Muhammad's behavior was divinely guided and that his judgment was sound. The only other monotheists referred to in the constitution (besides the Muslims) were Jews and, although they were designated as part of the community of the Prophet, it was stipulated that they could retain their own religious laws and practice. Those who declared themselves Muslim, in lieu of a developed legal system, deferred to the Prophet's judgment, on a case-by-case basis. Apparently, the rashidun followed this same model.
The assumption of power and subsequent conquest of vast territories by the Umayyads, however, changed that model. Umayyad general administrative policy, particularly regarding matters of taxation, was to leave in place the extant system, which varied according to whether the area had been under Roman (Byzantine) or Persian administration, the means of acquisition (conquest or treaty), and so on.5 Thus, huge chunks of policy and legislation were incorporated into the Islamic administrative system with virtually no input from Islamic sources. Furthermore, it became apparent to some that Umayyad leadership no longer evinced the model of wisdom and piety that Islamic leadership ideally symbolized. This recognition fostered the growth of opposition groups. Among them were religious scholars whose objections to Umayyad policies were based on their understanding of Islamic principles. It was in this context that the Islamic community began to develop the foundations for a political theory: the scholars' articulation of the components of legal reasoning, which gave rise to the four schools of Sunni Islamic law.6
The Umayyads introduced the office of judge (qadi), political appointees with varied administrative responsibilities, including police and treasury work, who were generally charged with settling disputes according to local custom. They had a great deal of latitude and could exercise their own discretion with regard to what was permissible given Islamic principles and administrative necessities. By the mid-eighth century, however, there was a significant number of religious scholars who were popularly regarded as having the authority to identify and interpret the sources of normative Islamic practice (Islamic law). They fell into schools of thought, which generally developed according to regional practice. In Madinah, for example, a legal school developed based on local practice and on the interpretations of scripture and hadith reports known locally. It was expressed in the work of Malik ibn Anas (d. 796), around which developed the Maliki school. Another center, with different local customs and different hadith reports, grew up in Kufah: the school of Abu Hanifah (d. 767), largely developed by Abu Yusuf (d. 798) and al Shaybani (d. 804) and known as the Hanafi school. The development of these schools was essentially democratic; determination of what was normative in the Qur'an and Sunnah was based on local consensus (ijma'). When there were no apparently applicable precedents in the Qur'an or Sunnah, legal scholars were to use their discretion, as had the Umayyad judges, to determine the implications of what they found in the Qur'an and Sunnah with regard to novel situations. They were to practice ijtihad, the name given to this interpretive work.
As members of the opposition, legal scholars (fuqaha') were naturally favored by the dynasty succeeding the Umayyads-the Abbasids (750-1258)-and came to play an important role in their administration. But their incorporation into the imperial administration revealed the need for greater rigor in legal thought in the hopes of greater uniformity of practice throughout the empire. Thus a third school of Islamic law developed, that attributed to al Shafi'i (d. 820) who held that only the consensus of the entire Islamic community (not just the various regions) was considered authoritative. As this was virtually impossible to attain, given the extent of the Islamic community had achieved, it was preferable to follow precedent as much as possible. For al Shafi'i, then, the third source of Islamic law was established consensus regarding the meaning of the Qur'an as interpreted in light of hadith reports. Ijtihad could be practiced only as a final resort, but it too was circumscribed: The intellectual effort to determine the implications of the Qur'an and Sunnah was to be according to syllogistic reasoning, or reasoning by analogy (qiyas). A fourth school of Islamic law eventually developed and placed even greater emphasis on precedent as expressed in the Sunnah.7 Al Shafi'is student Ahmad ibn Hanbal (d. 855) is credited with founding the Hanbali school.
This articulation of the components of Islamic law would become the basis for a comprehensive theory of political sovereignty. As Coulson, a legal historian, put it, "The legal scholars were publicly recognized as the architects of an Islamic scheme of state and society which the Abbasids had pledged themselves to build, and under this political sponsorship the schools of law developed rapidly".8 But the need for a comprehensive political theory apparently did not present itself until the early eleventh century, by which time the 'Abbasid caliphs were facing strong competition from regional usurpers, particularly in Egypt and even in Baghdad, their capital. It was this challenge that finally gave rise to a theory of government, propounded by the Shafi'i jurist al Mawardi (d. 1058).9